WHAT IS THE INCIPIENCY DOCTRINE

It is important to articulate what the incipiency doctrine and how is should be considered in the oeuvre of antitrust law. Firstly, let’s start with what it is not. It is not a feature of the law and it is not a principle of economics. It therefore does not provide a threshold by which to judge either the legality or the economic effect of a merger. It is a doctrine that embodies the wishes and fears of the legislators who enacted the Clayton Act using the word that was best though to provide such encapsulation. Bearing that in mind, we must consider that the frequency and method of its application is a reflection of the legal and political climate of the times. Its lack of concrete meaning in application may lead to divergent results from two courts referencing its precedence in their decisions.